In the Matter of the Term. of the Parent-Child Relationship of: O.Q., a Minor Child, L.Q. v. Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Jul 31 2015, 9:57 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael R. Auger Gregory F. Zoeller
Franklin, Indiana Attorney General of Indiana

Robert J. Henke
Deputy Attorney General

David E. Corey
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination July 31, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of: O.Q., a Minor Child, 41A05-1412-JT-587
Appeal from the Johnson Circuit
L.Q., Court

Appellant-Respondent, The Honorable K. Mark Loyd,
Judge, and The Honorable Marla
v. Clark, Magistrate

Cause No. 41C01-1404-JT-13
Indiana Department of Child
Services,
Appellee-Petitioner.

Najam, Judge.

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 Statement of the Case
[1] L.Q. (“Mother”) appeals the trial court’s termination of her parental rights over

her minor child O.Q. (“Child”). Mother raises a single issue for our review,

namely, whether the trial court’s conclusion that there is a reasonable

probability that the conditions which resulted in the removal of Child would

not be remedied was clearly erroneous. We affirm.

Facts and Procedural History
[2] Mother gave birth to Child on December 14, 2012.1 In June 2013, Mother and

Child were living in Franklin with N.A., with whom Mother had a romantic

relationship. On June 23, Mother and N.A. “were arrested after law

enforcement was called to the house for a domestic violence incident which

occurred while [Mother] was holding the child.” Appellant’s App. at 2.

While at the home, law enforcement was shown a stash of
heroin, syringes, burnt spoons, a vial of a liquid substance, a
powder substance, and drug papers.

Both [Mother] and [N.A.] have ongoing substance abuse
problems and both have been responsible for the child’s care
while under the influence of illegal substances. Both are aware of
the other’s substance abuse problems.

[Mother and N.A.] were arrested on or about June 23, 2013[,]
and charged with preliminary charges of domestic battery, drug-
related offenses and neglect of a dependent.

1
Child’s father, T.D., does not participate in this appeal.

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 Id. Also on June 23, the Indiana Department of Child Services (“DCS”)

removed Child from Mother’s care. And on June 25, DCS filed a petition

alleging that Child was a child in need of services (“CHINS”) because of

Mother’s history of substance abuse and domestic violence.

[3] At a hearing on the petition, Mother admitted that Child was a CHINS, and the

trial court entered an order declaring Child a CHINS. And on July 30, the trial

court ordered Mother to: maintain appropriate housing; not use controlled

substances without a valid prescription; submit to random drug screens;

complete a substance abuse evaluation; participate in home-based case

management; not commit acts of domestic violence; and participate in domestic

violence counseling. The trial court also ordered N.A. to participate in services.

[4] On April 30, 2014, DCS filed a petition for the involuntary termination of

Mother’s parental rights to Child. Following an evidentiary hearing on the

petition on September 24, 2014, the trial court entered the following relevant

findings and conclusions in support of terminating Mother’s parental rights:

10. From July 201[3] to April 2014, Mother and [N.A.]
remained together as a couple. DCS offered reunification
services to each of them.

11. In April 2014, Mother requested [N.A.] be removed from the
case as Mother no longer desired to be in a relationship with her.

12. By Order dated June 18, 2014, this Court issued an Order
Modifying Dispositional Decree. This Order modified the
court’s dispositional order of July 30, 2013, by removing [N.A.]

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 from the case and ordering Mother to have no further contact
with [N.A.]

13. This Court approved a change in permanency plan from
reunification to a concurrent plan of adoption and reunification
by order dated February 25, 2014.

14. Mother was ordered to complete a number of dispositional
goals under the CHINS cause. In summary, the goals are:

a. maintain appropriate, safe, stable housing;

b. provide proof of financial resources to maintain
the household;

c. allow a representative of CASA/DCS entry into
the home;

d. maintain contact with DCS; pay child support as
ordered by the Court;

e. not use, consume, or distribute any controlled
substances;

f. demonstrate the ability to meet the child’s needs;

g. execute all consents for release of information for
DCS/CASA to monitor progress in the matter;

h. participate in home-based case management,
completing the reasonable recommendations of the
service provider;

i. participate in parenting time as scheduled through
DCS;

j. not commit any acts of domestic violence;

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 k. submit to random drug screens within a
reasonable time of the request;

l. submit to a substance abuse evaluation and follow
through with the reasonable recommendations of the
provider; and

m. participate in domestic violence counseling and
follow through with the reasonable recommendations
of the provider.

15. In addition to the goals stated above, Mother was ordered to
have no contact with [N.A.]

16. Mother has failed to establish and maintain safe and stable
housing for herself or the child. Mother lived with [N.A.] from
June 2013 to approximately April 2014, when she ended her
relationship with [N.A.]

17. After leaving [N.A.] in April 2014, Mother lived with her
grandmother for a couple of weeks before being asked to leave.
From there, Mother lived with [a boyfriend named J.F.] in
various hotels, and then in an apartment, until approximately
one week before the hearing.

18. At the time of the hearing, Mother reported living with her
grandmother again. She admits she had only spent a few nights
at her grandmother’s prior to the hearing and that she also stays
with friends. Further, this is the same grandmother who
requested that Mother leave the house after staying there a
couple of weeks in April 2014.

19. Mother has failed to provide proof of financial resources
sufficient to maintain a household for herself and the child.
Mother reported employment throughout the CHINS case,
however, she did not provide proof of income to her home-based

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 provider when requested. While Mother has provided occasional
pay-stubs to DCS, she has not provided proof of sufficient
income to maintain a household to DCS or to this Court.

20. Mother has used controlled substances throughout the
CHINS case. She was ordered to participate in and complete
substance abuse treatment. Mother was discharged from three
different programs and failed to complete substance abuse
treatment.

21. Mother was initially referred to Take Back Control for
substance abuse treatment and underwent an assessment there.
She then requested another service provider and was referred to
Adult and Child. After being referred to Adult and Child,
Mother requested another referral to Take Back Control.

22. Mother was unsuccessfully discharged from Take Back
Control in January 2014, for continuing to have positive drug
screens.

23. Mother was then referred to Adult and Child. She was
unsuccessfully discharged in July 2014, because she failed to take
responsibility for having used drugs after provided positive drug
screens.

24. Mother’s substance abuse throughout the CHINS case has
been significant based on the observations of service providers
and the results of drug screens. She has had positive screens as
recently as July 2014.

25. Mother remains at high risk for additional substance abuse in
that she has not completed a substance abuse treatment
[program] and is apparently now in a relationship with an
individual, [J.F.], who Mother admits uses drugs.

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 26. Mother did not consistently participate in home-based
services and has not completed the recommendations of the
service provider.

27. Mother was referred to home-based services to work with
Mother on housing, employment, and parenting skills. Mother
met with the home-based provider fairly regularly; however,
Mother did not progress in obtaining safe and stable housing for
the child. The home-based provider also attempted to help keep
Mother safe from repeated domestic violence with [J.F.] Mother
failed to follow through with the provider’s suggestions to
contact domestic violence shelters.

28. Mother did obtain and maintain employment; however, she
did not provide DCS, the home-based worker, or the Court with
proof of her financial resources.

29. Supervised parenting time was provided to Mother three
days a week, for two hours each visit. Due to several missed
appointments, Mother was required to contact the provider the
day before the visit to confirm she would be participating in the
visit. If Mother did not call the day before the visit, the visit
would not occur. This plan was put in place because the service
provider was transporting the child to the visit.

30. Mother failed to attend a visit as recently as one week prior
to the hearing on DCS’s Verified Petition to Terminate her
Parental Rights. Mother missed approximately twenty-five
percent (25%) of her parenting time opportunities during the
CHINS case.

31. Due to Mother’s lack of safe and stable housing throughout
the CHINS matter, the parenting time occurred at Adult and
Child. The parenting time was increased by one hour in July
2014; however, Adult and Child could not recommend
additional parenting time due to Mother’s lack of consistent
participation.

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 32. Mother’s significant relationships during this case have both
been marked by domestic violence. Mother was order[ed] to
participate in domestic violence education and complete the
reasonable recommendations of the provider.

33. After being unsuccessfully discharged from two domestic
violence programs, Mother completed domestic violence
education through Adult and Child with Robin Brown. Ms.
Brown counseled Mother on the cycles of domestic violence,
how domestic violence impacts children, and how to break the
cycle. Ms. Brown also offered Mother assistance should she find
herself in a domestic violence situation.

34. By Mother’s admission, her relationship with [N.A.] was
marked with domestic violence. After being ordered to have no
further contact with [N.A.], Mother petitioned for a protective
order. However, the Order was dismissed when Mother did not
appear at the hearing set on the petition.

35. After leaving [N.A.], Mother began living with [J.F.] In July
2014, after Mother had completed domestic violence education
with Ms. Brown, Mother accused [J.F.] of raping and beating
her. Shortly after this incident, Mother was found sharing a hotel
room with [N.A.], in violation of the no contact Order entered in
the CHINS case.

36. Mother eventually moved back in with [J.F.] In September
2014, approximately a week before the hearing, Mother again
accused [J.F.] of hurting her.

37. Mother did not contact Ms. Brown for assistance or
counseling after the domestic violence incidents with [J.F.]
Mother also failed to seek out assistance from domestic violence
shelters as recommended by her home-based case worker.

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 38. The child’s health and safety was at risk during the domestic
violence incident leading up to the child’s detention. Despite
having completed domestic violence education, Mother has not
demonstrated she is able to avoid domestic violence in her
significant relationships.

39. The child was placed in the home of Mother’s grandmother
when the child was detained. However, the child was moved to
a licensed foster care home upon Mother’s request. It was
discovered the grandmother was smoking around the child when
the child’s doctors had requested she not be around cigarette
smoke. This is the same home in which Mother now claims to
be residing.

40. When Mother began to live with [J.F.] in April 2014,
Mother reported to FCM Montgomery that he would participate
in services and take drug screens. [J.F.] refused to submit to a
drug screen when requested by family case manager Corina
Harmless in September 2014. [J.F.] did not participate in any
services.

41. The child has remained outside the home of the parents since
her detention in June 2013.

42. It would be in the child’s best interest for the parent-child
relationship to be terminated as Mother had not made significant
progress toward remedying the issues that led to her removal.

43. DCS’s plan for the child’s continued care is adoption by her
current foster parents.

II. CONCLUSIONS

***
2. The child has been removed from the parent for at least six (6)
months under a dispositional decree.

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 3. The child has been removed from the parent and has been
under the supervision of a county office of family and children or
probation department for at least fifteen (15) months of the most
recent twenty-two (22) months.

4. There is a reasonable probability the conditions that resulted
in the child’s removal or the reasons for placement outside the
home of the parents will not be remedied.

***

6. Mother has made little, if any, progress in completing her
dispositional goals in over a year, despite several services having
been provided to her. Mother has demonstrated a pattern of
being involved in violent relationships. Mother’s failure to
complete substance abuse treatment, in addition to her continued
association with drug users, demonstrates Mother has not
benefitted from the substance abuse treatment she did participate
in.

7. There is a reasonable probability the continuation of the
parent-child relationship poses a threat to the well-being of the
child. Mother has made little, if any, progress in addressing the
reasons for the Court’s involvement with the family. Continuing
the parent-child relationship under the circumstances poses the
threat of harm to the child.

8. Mother admitted that her substance abuse and history of being
involved in domestic violence prevented her from effectively
parenting [Child]. These circumstances have not changed in
spite of Mother having assistance and opportunity to change
them.

9. Termination of Mother’s parental rights is [in] the best
interests of the child. The child has been in foster care since she
was six months old, and an adoptive family has already been
identified. She needs permanency and stability. She should not

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 be forced to wait indefinitely for Mother to work toward
reunification. Mother has demonstrated an inability to provide
[Child] with a home that is free of violence and use of illegal
substances, both of which are detrimental to her.

10. There is a satisfactory plan for the care and treatment of the
child, which is adoption.

Appellant’s App. at 17-22 (citations omitted). This appeal ensued.

Discussion and Decision
[5] We begin our review of this appeal by acknowledging that “[t]he traditional

right of parents to establish a home and raise their children is protected by the

Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),

trans. denied. However, a trial court must subordinate the interests of the

parents to those of the child when evaluating the circumstances surrounding a

termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re K.S.), 750

N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

relationship is proper where a child’s emotional and physical development is

threatened. Id. Although the right to raise one’s own child should not be

terminated solely because there is a better home available for the child, parental

rights may be terminated when a parent is unable or unwilling to meet his or

her parental responsibilities. Id. at 836.

[6] Before an involuntary termination of parental rights can occur in Indiana, DCS

is required to allege and prove, among other things:

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 (B) that one (1) of the following is true:

(i) There is a reasonable probability that the
conditions that resulted in the child’s removal or the
reasons for placement outside the home of the
parents will not be remedied.

(ii) There is a reasonable probability that the
continuation of the parent-child relationship poses a
threat to the well-being of the child.

***

(C) [and] that termination is in the best interests of the child . . . .

Ind. Code § 31-35-2-4(b)(2).2 That statute provides that DCS need establish

only one of the requirements of subsection (b)(2)(B) before the trial court may

terminate parental rights. DCS’s “burden of proof in termination of parental

rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child

Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-

14-2).

[7] When reviewing a termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

denied. Instead, we consider only the evidence and reasonable inferences that

2
Indiana Code Section 31-35-2-4(b)(2)(B) also allows DCS to allege that “[t]he child has, on two (2) separate
occasions, been adjudicated a child in need of services.” But that additional, alternative provision is not
relevant here.

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 are most favorable to the judgment. Id. Moreover, in deference to the trial

court’s unique position to assess the evidence, we will set aside the court’s

judgment terminating a parent-child relationship only if it is clearly erroneous.

Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

(Ind. Ct. App. 1999). trans. denied.

[8] Here, in terminating Mother’s parental rights, the trial court entered specific

findings of fact and conclusions thereon. When a trial court’s judgment

contains special findings and conclusions, we apply a two-tiered standard of

review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

2005). First, we determine whether the evidence supports the findings and,

second, we determine whether the findings support the judgment. Id.

“Findings are clearly erroneous only when the record contains no facts to

support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

102 (Ind. 1996). If the evidence and inferences support the trial court’s

decision, we must affirm. In re L.S., 717 N.E.2d at 208.

[9] Mother does not challenge the trial court’s findings of fact in its order

terminating her parental rights. Rather, Mother challenges only the court’s

legal conclusion that, on these facts, termination of her parental rights is

justified because Mother will not remedy the conditions that resulted in Child’s

removal. But, again, Indiana Code Section 31-35-2-4(b)(2)(B) is written in the

disjunctive, and the trial court concluded both that Mother will not remedy the

conditions that resulted in Child’s removal and that the continuation of the

parent-child relationship poses a threat to the well-being of Child. Because

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 Mother does not challenge the trial court’s conclusion under 31-35-2-

4(b)(2)(B)(ii), that issue is waived.

[10] Waiver notwithstanding, DCS presented sufficient evidence to support the

termination of Mother’s parental rights, and the trial court’s conclusions are not

clearly erroneous. A trial court need not wait until a child is irreversibly

influenced by a deficient lifestyle such that his physical, mental, and social

growth is permanently impaired before terminating the parent-child

relationship. Shupperd v. Miami Cnty. Div. of Family & Children (In re E.S.), 762

N.E.2d 1287, 1290 (Ind. Ct. App. 2002). When the evidence shows that the

emotional and physical development of a child in need of services is threatened,

termination of the parent-child relationship is appropriate. Id.

[11] The undisputed evidence shows that Child was removed from Mother’s care

only a few months after Child’s birth. During the CHINS proceedings, Mother

did not maintain consistent contact with her family case manager; she has not

maintained suitable or stable housing; she has continued to be involved in

abusive personal relationships; she has not consistently visited with Child; she

did not follow through on substance abuse treatment recommendations; and

she failed several drug screens, including as recently as July 2014. Mother’s

contentions on appeal amount to a request that we reweigh the evidence, which

we will not do. Again, Mother does not challenge any of the trial court’s

findings on appeal. And those findings support the trial court’s conclusions that

there is a reasonable probability that the conditions that resulted in Child’s

removal will not be remedied and that the continuation of the parent-child

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 relationship poses a threat to Child’s well-being. The findings also support the

trial court’s conclusions that termination is in the best interests of Child and

that there is a satisfactory plan for the care and treatment of Child. We hold

that the trial court did not err when it terminated Mother’s parental rights to

Child.

[12] Affirmed.

Kirsch, J., and Barnes, J., concur.

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